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War power and the Royal Prerogative

Bowing to the realities of a minority government, Prime Minister Stephen Harper recently permitted the House of Commons to debate Canada''s military role in Afghanistan.

The previous Liberal government of Paul Martin had committed Canada to this conflict with no formal Parliamentary approval. When the opposition Conserv-atives had pressed the government in Novem-ber 2005 for information on the goals and objectives of the mission, specific answers were few. Just before the fall of the Liberals and the call of the federal election there had been a brief "take note" debate that provided information on a deployment that was already well underway.

But now with Canadian soldiers actively engaged and taking casualties, both the Bloc Quebecois and the NDP wanted the question of Canada's role in the war debated in the legislative chamber. As NDP Leader Jack Layton said, "Canadians want to see a debate on something so fundamental."

Without question, sending a nation to war is one of the most fundamental and solemn matters that any government can undertake. The question is, is it really any of Parliament's business?

Canada is an inheritor of the British constitutional tradition that provides that while Parliament must approve the cost of an armed force, what the Crown chooses to do with that armed force is none of Parl-iament's concern. Whether it is sending troops on a humanitarian mission, peacekeeping, or invading some unpleasant neighbour is a matter nowhere covered by statute law.

It is part of that old but very real authority, the Royal Prerogative.

The British monarch (as any casual reader of Shake-speare's plays would appreciate) had the unfettered right to declare war whenever he or she chose to do so. After the Glorious Revolution of 1688, Parliament curbed several royal liberties and might have assumed the war-making power. But it did not. It contented itself to leave this authority with the Crown and only required that Parliament had to consent to the cost of maintaining a standing army in time of peace.

This has remained the case up until the present day. In 1951, when the British government was questioning whether or not Parliament had to be consulted on the Korean War, Cabinet Secretary Sir Norman Brook wrote that legislative involvement was inappropriate for any "endeavour to change this fundamental basis" of the right of the Crown to defend the realm was ill-advised.

Of course, emergency powers, particularly those that affected the civil rights of the citizen, required legislative sanction. But the actual decision of war or no war remained in the hands of the executive.

In Canada the Royal Prerogative is expressed in s. 9 of the Constitution Act, which vests all executive power in the Queen, and s. 15, which grants to her (and effectively to the prime minister of the day) command of the Canadian Forces. Even with this authority, the declaring of war has never seemed to be a vital matter in Canada.

"When Britain is at war, Canada is at war," said Sir Wilfrid Laurier in 1910.

And so it was. In August 1914, Canada was considered to be at war with the Central Powers when the mother country made its declaration of war. In 1939, Canada was slightly more self-reliant and diplomats had to hunt down George VI at the Royal Lodge at Windsor to have him sign (in his capacity as King in Canada) a declaration of war on Germany on Sept. 10, 1939. Parliament was not in session in Ottawa and it was not thought necessary to bring it back to discuss the issue of war.

That the Royal Prerogative exists in Canada and is invoked by the executive on a regular basis is a fact of life. It was even reviewed and upheld by the courts only a few years ago. While the issue was not something as momentous as peace or war but rather the humbler topic of whether or not Conrad Black should receive a peerage, the issue was essentially the same.

In Black v. Chr?tien, Black's lawyer Alan Lenczner argued that Prime Minister Jean Chr?tien had acted improperly in advising the Queen to deny Black a peerage. On the face of it, the granting of honours or the withholding of them was something entirely at the Crown's discretion. Therefore even giving advice on such issues was beyond the court's reach.

However, Lenczner argued that the Royal Prerogative has eroded over time and that "from time to time the courts look at this prerogative to see if prerogative should still be treated as prerogative and it changes."

The courts ruled, however, that it had not eroded or at least not enough for Conrad Black to gain admittance to the House of Lords. For the Superior Court of Justice, Chief Justice Patrick LeSage noted that the Queen's decision to grant or withhold honours was strictly her own and it was evident that Chr?tien was also exercising a Crown prerogative in discussing it with her.

LeSage concluded the conduct of foreign affairs is the prerogative of the Crown and therefore Chr?tien's conduct "Is not within the reach of the court because it was not a justiciable order or decision regulating conduct. It is not within the power of the court . . ."

Yet in the end result, wars are not fought by legal principles but by troops and they are not financed by ancient precedent but by taxpayers. The reality is that the government remains responsible to the people. If the recent debate on the war in Afghanistan could scarcely be termed a real debate (the commitment had been made by Liberals, continued by Conservatives and both parties strove to outdo each other in patriotic expressions of support), it demonstrated that war is a matter of such gravity that it needs public and legislative backing.

Perhaps there was something to Alan Lenczner's comments that prerogatives can erode. At the time Canada went to war with Yugoslavia in 1999, then-Defence minister Art Eggleton made it clear that it was the government's decision on whether or not Canada would commit to the war. Yet at the same time he promised that "we will keep everybody fully informed."

In the early April debate on Afghanistan, the NDP demanded that the government advise the House on all foreign policy objectives, the military mandate, and the rules of engagement. It seems only a step from this to a new prerogative in which Parliament is

not only informed of events but demands a real say over whether or not the country goes to war in the first place.

Patrick Brode practises law in Windsor, Ont., is an occasional sessional lecturer at the University of Windsor's law school, and the author of Casual Slaughters and Accidental Judgments: Can-adian War Crimes and Pros-ecutions, 1944-1948.

Law Times Poll

It's unknown how widely police in Ontario utilize controversial surveillance techniques that can capture private data from non-targets in criminal investigations. Do you think there should be formal requirements to release this information?

Yes, this information should be released.

No, this would put public safety and ongoing police investigations at risk.